Doctors Without Hospitals

By Jason Cone

Oct. 23, 2015

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CreditCreditWard Zwart

AS awful as war is, it still has rules. These rules, codified by the Geneva Conventions, aim to restrain warring parties and save lives, even in the midst of tremendous violence. Enforcing these rules is understandably difficult, but it is crucial that we recognize, identify and assign responsibility for grave violations when they do occur.

That is why my organization, Doctors Without Borders, is calling for the United States to participate in an investigation by the International Humanitarian Fact-Finding Commission into the recent airstrikes by American forces on our hospital in Kunduz, Afghanistan. The commission is the only body expressly mandated by the Geneva Conventions to investigate apparent transgressions of international humanitarian law. It can do this in ways that even the most thorough American- or military-led investigation cannot.

Many facts about the attacks in Kunduz are already known. For more than an hour early on Oct. 3, an American AC-130 gunship repeatedly strafed the main building of the hospital compound — which housed the intensive care unit, the emergency room and the operating theater — with great precision and tremendous firepower. The attack happened despite the fact that our staff in Afghanistan and in the United States had shared the GPS coordinates of the four-year-old hospital with Afghan and American military contacts as recently as Sept. 29.

The violence continued to unfold despite frantic calls from our staff in Kabul and New York to military commands in the United States and Afghanistan. And it occurred despite the fact that hospitals in war zones have protected status under the law of armed conflict, as enshrined in the Geneva Conventions and protocols incorporated into United States military law.

Our staff members tried to get themselves and their patients to safety. Those who weren’t wounded treated the injured however they could, including in an ad hoc emergency room in an office. Their efforts saved many lives, but the assault still killed 23 people — 13 staff members and 10 patients, including three children — and wounded more than three dozen others. The airstrikes destroyed the only emergency trauma care center in northern Afghanistan.

For us, it was a devastating event, the largest loss of life in a single incident in more than two decades. We knowingly take the risks associated with working in active conflict areas. But this attack tore through the protections afforded to hospitals in war zones, protections on which we rely and must constantly reinforce in order to establish and maintain lifesaving medical projects across front lines.

Early statements from the military claiming that the gunship fired in the vicinity of the hospital and not directly at it quickly gave way to admissions that American or Afghan forces on the ground requested the airstrikes and that the hospital building was in fact the target. Assertions that armed Taliban combatants were on the grounds of our hospital have been discredited, both in this newspaper and elsewhere. Neither our staff members nor Kunduz residents reported seeing armed combatants or any fighting within the hospital compound before the airstrikes.

Even if there had been “enemy” activity within the compound, the warring parties would still have been obligated to uphold basic tenets of the laws of war, including respecting the protected status of hospitals, understanding the nature of targeted structures, and factoring in the potential toll on civilians of any intended attack.

International law also makes it clear that when a fighter is wounded and is off the field of battle he ceases to be a combatant and must be afforded treatment based on his medical needs alone. In fact, failure to provide treatment is a grievous breach of medical ethics that could itself amount to a war crime.

The United States military, NATO and the Afghan government have begun investigations. Gen. John F. Campbell, the leader of American forces in Afghanistan, said that the decision to attack was made in the American chain of command. President Obama offered his personal apologies to our international president, Dr. Joanne Liu.

We are cooperating with these inquiries and hope that investigators discover and disclose the procedural calculations that led to this catastrophic loss of life.

But those findings will understandably be rooted in the context of military doctrine and practice, not international humanitarian law. They will examine apparent failures to follow the United States military’s rules of engagement, but they are unlikely to ask whether or not those rules of engagement themselves comport with international standards for the rules of war. We also need to know the degree to which the lines between military and civilian targets have been blurred, so we can better understand the risks our teams in Afghanistan and elsewhere will face.

The Switzerland-based International Humanitarian Fact-Finding Commission, first defined by the 1977 Additional Protocols to the Geneva Conventions and officially established in 1991, exists to deal with situations just like this one.

A commission investigation could not only review the facts of the Kunduz case; it could also establish a record of the violations of international law that appear to have occurred and set objective precedents of what is and is not tolerable in a conflict.

Our call for an independent international investigation is not a political gesture, pursued solely because the United States was so prominently involved in the Kunduz attack. Just as our medical ethics and commitment to international humanitarian law mandate that we treat all wounded persons in a conflict zone — regardless of affiliation, race or religion, and regardless of how or why they were injured — our founding principles compel us to highlight encroachments on the medical facilities through which we deliver care. We have done so recently in Yemen, Syria, the Central African Republic, South Sudan and other places.

But if international humanitarian law is flouted, if violations on this scale can be dismissed as a “mistake,” “the fog of war” or even just “a terrible tragedy,” then all of our medical staff, projects and patients in conflict zones could be jeopardized.

In the case of Kunduz, it is not our responsibility to prove that the United States military violated the laws of war or its own rules of engagement. It is the responsibility of the party that destroyed a fully functioning hospital, with some 200 staff members and patients inside, to prove that it did not.

We know our call may not be heeded, but the United States and other nations should see it as an opportunity. By consenting to an independent investigation, President Obama could reaffirm America’s commitment to international humanitarian law, restore its credibility when it comes to denouncing violations by other states, and help reinforce the protected status of medical facilities in conflict zones.

What is at stake is the ability of humanitarian organizations to continue their lifesaving work at the front lines of conflict.

Jason Cone is the executive director of Doctors Without Borders in the United States.